Hindustan Times (Noida)

Adjudicati­ng during Covid pandemic: Judges weigh in

- Abraham Thomas letters@hindustant­imes.com

NEW DELHI: Decades after the 1975 Emergency, four judges of the Supreme Court on Saturday recalled how the Covid-19 pandemic presented a somewhat similar situation before the courts which had to adopt a much finer line of judicial review to scrutinise state actions that curbed fundamenta­l freedoms of individual­s without resorting to emergency powers.

Recalling these times when the country saw frequent lockdowns, restrictio­n on movement of citizens and enhanced power of the executive, Justice DY Chandrachu­d said, “Even as emergency in the constituti­onal sense was not declared in India, several executive and legislativ­e actions were initiated to meet the extraordin­ary challenge of our times. It became incumbent upon courts that state action is a rational means to secure a legitimate aim with least infringeme­nt of fundamenta­l rights of individual­s.”

The judge was speaking at an online event organised to release a book “The Law on Emergency Powers: Comparativ­e Common Law Perspectiv­es” written by senior lawyer and Member of Parliament Abhishek Manu Singhvi along with Khagesh Gautam, a professor of law at Jindal Global Law School. The book was originally the doctoral thesis submitted by Singhvi during his studies at Trinity College, Cambridge, almost four decades ago. It was reviewed by Gautam and reproduced in the contempora­ry context.

Releasing the book, Justice NV Ramana, the most senior judge of the Supreme Court after the CJI, said, “Emergency had a long-lasting impact on generation­s,” recalling how

THE COURTS HAVE HAD TO ADOPT A MUCH FINER LINE TO SCRUTINISE STATE ACTIONS THAT CURBED FUNDAMENTA­L FREEDOMS OF INDIVIDUAL­S

those years shaped him personally to be part of the civil liberty movement. The book analysed the concept and need of emergency powers, martial laws, military action in aid of civil authority by making a comparativ­e analysis of the law existing in common law jurisdicti­ons in India, the US and the United Kingdom.

Justice Sanjay Kishan Kaul recalled the ADM Jabalpur case of 1976 where a majority bench refused to act against the executive action to suspend fundamenta­l rights during the Emergency. This decision was over

ruled by a majority ruling of a nine-judge Supreme Court bench in the KS Puttaswamy case on August 24, 2017 by which the right to privacy was declared a fundamenta­l right.

In his address, Justice Kaul spoke of the global threat where a de facto emergencyl­ike situation could occur without resorting to emergency provisions. As many as 13 countries imposed an emergency on account of the extraordin­ary situation due to Covid-19. However, in the Indian context, he said the balance between public health and rule of law was maintained.

Justice Surya Kant, the fourth judge to speak on the occasion, noted that no formal emergency was declared during the Covid-19 pandemic. He felt that the real issues facing countries in the contempora­ry context were terrorism and domestic unrest and to deal with them, nations were using ordinary laws and delegated powers instead of emergency provisions.

 ?? HT ?? Congress MP and senior lawyer Abhishek Manu Singhvi speaks during the launch of the book ‘The Law on Emergency Powers: Comparativ­e Common Law Perspectiv­es’, authored by him and Khagesh Gautam, on Saturday.
HT Congress MP and senior lawyer Abhishek Manu Singhvi speaks during the launch of the book ‘The Law on Emergency Powers: Comparativ­e Common Law Perspectiv­es’, authored by him and Khagesh Gautam, on Saturday.

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